Is it still worth making a will?

This is the question that was being asked following a recent Court of Appeal decision. It all arose from a claim made by a grown up daughter against the estate of her late mother.

The mother, Melita Jackson and her daughter Heather Ilott, fell out many years earlier because Mrs. Jackson did not approve of Mrs. Ilott’s choice of husband. Unfortunately, the rift between mother and daughter was never resolved. By the time Mrs. Jackson died, Mrs. Ilott and her husband had five children but were in very poor financial circumstances. Mrs. Jackson made a will leaving nothing from her estate of about £500,000 to her daughter but to be divided between five charities, with which Mrs. Jackson had no previous connections.

Mrs. Ilott brought court proceedings against her mother’s estate claiming that she was entitled to be a beneficiary. A court decided that she should have been provided for by Mrs. Jackson. The charities who were the beneficiaries, appealed against that decision and eventually the case came to the Court of Appeal. The decision of the judges was that not only was Mrs. Ilott entitled to receive part of her mother’s estate but that the sum granted to her at the original hearing had been too small. The award was increased to enable Mrs. Ilott and her husband to buy a small property and she was also given a modest cash sum.

From some of the outcry in the press following the decision, it might be thought that the court had come to a radical conclusion. The main complaint from those who did not like the result was that the judges had no “right” to disturb the wishes of someone such as Mrs. Jackson who had made a will, knowing exactly what she doing.

The reality is that the judges were not being radical at all. Over 40 years ago, Parliament passed a law known as the Inheritance (Provision for Family and Dependants) Act. Under this statute, if someone in a carefully defined group of persons, mainly spouses or partners and children (and not just infant children), feels that they have been excluded as a beneficiary of a will, then they are entitled to bring a claim for what is described as “reasonable financial provision” from the estate.

In deciding whether or not such a claim is justified, the court will take into account all the background circumstances but focus largely on whether or not it would have been reasonable for financial provision to be made for the person making the claim. The only slightly unusual factor in Mrs. Ilott’s case (and even this was not unique) was that she could not establish that she had been financially dependent on her mother. The judges, nevertheless decided that Mrs. Ilott was in financial need and that that need was a factor that must partially outweigh the interests of the charities.

Anyone making a will can feel reassured that their wishes will be followed. The answer to the question “Is it still worth making a will” is still a resounding “yes”. The only cautionary note is that, if there is someone who might expect to be a beneficiary and who comes within the category of people mentioned by the Act, then the testator must explain why that person is being excluded. That explanation would be considered by the court as part of the overall background. The closer the relationship between the testator and the person who expects to inherit from the will and the more that that person is financially dependent on the testator or expecting to benefit from the will, the greater the chance that the terms of the will might be upset.

It should be remembered that nothing in this is new. It is a classic case of Parliament having legislated, as it often does, for what it regards as the general good of society as a whole. We are a long way from the Continental Napoleonic system and to a lesser extent, that in Scotland, under which provision has to be made in wills for relatives and particularly children.

And by the way, failing to make a will nearly always brings more problems than making one, even a will that might be challenged.

For more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by e-mail or telephone.